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CASE NO.: Appeal (crl.)  462 of 2007

PETITIONER: Mano

RESPONDENT: State of Tamil Nadu

DATE OF JUDGMENT: 02/04/2007

BENCH: Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T  (Arising out of S.L.P. (Crl.) No.5227 of 2006)  

Dr. ARIJIT PASAYAT, J.

                Leave granted.

Challenge in this appeal is to the judgment rendered by a  Division Bench of the Madras High Court dismissing the  appeal filed by the present appellant and two others. By the  impugned judgment the conviction of the appellant and the  two others for commission of offence punishable under Section  302 read with Section 34 of the Indian Penal Code, 1860 (in  short the ’IPC’) is maintained. The Trial Court convicted the  appellant and the three others and sentenced each to undergo  imprisonment for life and to pay a fine of Rs.4,000/- with  default stipulation.  Only three of them had preferred appeal  before the High Court.  

Prosecution version as unfolded during trial is as follows:

For the sake of convenience, the accused persons- appellants are described as A1, A2 and A3. The other accused  is described as A4.  

Sivaraman (A1) is a resident of Periyairusampalayam  village.  Mano (A2) and Nagappan (A3) are residents of  Ariyankuppam village.  Sivaraj (PW-1) and Ganpathy (PW-3)  are brothers and they are also residents of  Periyairusampalayam.  There was quarrel between A1 and PW- 1 at the time of festival at Angalamman temple in  Periyairusampalayam village.  The said quarrel was pacified by  one Pasupathy (hereinafter referred to as the ’deceased’), son  of another brother of PWs 1 and 3 and thereby A1 had  impression that the deceased was a supporter of Srinivasan.  Due to that impression, there was enmity between A1 and the  deceased. On 8.5.2000, at about 8.30 p.m., PW-1, PW-3,  Vijayan, Murugan, Babu and Veerappan were engaged in   conversation near the electric post on the way to graveyard.   At that time, the deceased was coming towards the way of  graveyard for the purpose of attending nature’s calls.  PW-1  was also following him.  At that time, suddenly A1 armed with  knife, A2 armed with knife and A3 and A-4 armed with a big  stick and iron pipe respectively came from behind a thorny  bush and began to attack the deceased. Particularly A1 and  A2 attacked the deceased with knives on his neck and A3

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attacked the deceased, with the big stick. Consequently, the  deceased sustained injuries and fell down.  On seeing it, PW-1  and others rushed near and the accused persons ran away  from the occurrence place. The injured deceased was taken to  the hospital at Pondicherry, but on the way, he died.   Thereafter, PW-1 gave complaint marked as Ex.P1 to the Sub  Inspector of police viz., Balakrishnan (PW-12) at about 5.00  a.m. on 9.5.2000.  On the basis of Ex.P1, PW-12 registered a  case in Crime no.132 of 2000 under Section 302 IPC and  prepared the printed FIR marked as Ex. P15 and sent the  same to the Magistrate and copies to the higher officials.   Subsequently, the Inspector of police viz., Sundarrajan, (PW- 13) received the said FIR at about 5.30 a.m. on 9.5.2000 and  took up the investigation and proceeded to  Periyairusampalayam village and visited the occurrence place  in the presence of Gopu (PW-7) and Palani (PW-8), prepared  observation mahazar and also recovered from the occurrence  place M.Os. 1 to 8 by preparing mahzar marked as Ex.P18 and  sent those M.Os. to the Magistrate. In continuation of the  investigation, he proceeded to the Pondicherry Government  Hospital and conducted inquest upon the dead body of  Pasupathy in the presence of panchayatdars and witnesses  and prepared inquest report marked as Ex. P 19 and also  examined witnesses and then made arrangements for sending  the body for post mortem through Head Constable Thukkaram  with the requisition letter marked as Ex. P 20 and he searched  for the accused persons.  In the meanwhile, Dr. Balaraman  (PW-10) conducted post mortem and found the following five  external injuries.

"1.     Bluish discolouration and swelling present over  right upper eye lid.                          2.      Lacerated injury 4 x 1 x bond deep present over left  Parietal region of head with fracture of underlying  bone. 3.      Lacerated injury 5 x 1 x bone deep over left occipital  region of head.  4.     Lacerated injury 4 x 1 x bone deep present over left  occipital region of head. 5.      Obliquely placed incised wound 10 x 1.5 x bone  deep with fracture of underlying bone present over  back of neck behind left ear."

Besides, there were internal injuries. He furnished post  mortem report marked as Ex. P10 along with his opinion that  the said Pasupathy had died due to head injuries sustained by  him.  The Inspector of police arrested all the four accused on  15.5.2000 at about 3.30 p.m. at Thavalakuppam road junction  and recorded the confessional statement of A1 marked as  Ex.P21 and that of A2 marked as Ex. P 22 and recovered the  knives marked as M.O.9 and M.O. 10 by preparing mahazars  marked as Exs. P 23 and P 24 and examined Dr. Balaraman  showing M.Os. 9 and 10 and then remanded the accused for  judicial custody and also gave requisition of the Magistrate for  sending the M.Os. for chemical analysis. After receipt of  chemical analyst’s report, finally, he completed the  investigation and filed charge sheet against all the accused for  commission of offence punishable under Section 302 read with  Section 34 IPC.

       The Trial Court on analysis of the evidence came to hold  that the appellant and the three others were guilty of offence  and sentenced each, as noted above. There were initially four  accused persons.  Only three of them i.e. A1, A2 and A3 filed  appeal before the High Court which was dismissed by the

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impugned judgment. The present appeal is by A2.         Learned counsel for the appellant submitted that the FIR  which was treated to be information on the basis of which law  was set into motion was not really first information report and  there was another document anterior in point of time.  The FIR  which has been taken note of  by the Trial Court was lodged  on 5 p.m. on 9.5.2000  whereas the earlier information given  by the Hospital on 8.5.2000 at 2.30 p.m.  The two witnesses  on whose evidence the Trial Court recorded the conviction i.e.  PW 1 and PW 3 were related to the deceased. The version  unfolded during trial is highly unbelievable.  It was submitted  that it is impossible that somebody would lie in hiding around  8.00 p.m. and would not attack in darkness and instead  committed murder near a lamp post.  PWs 2, 4 and 6 did not  support the prosecution version.  The weapons were recovered  long after and were not sent for chemical examination.  It is,  therefore, submitted that the conviction as recorded by the  Trial Court and maintained by the High Court cannot be  maintained.

       In response, learned counsel for the respondent-State  supported the judgment of the High Court affirming that of the  Trial Court.

       It is to be noted that neither before the Trial Court nor  before the High Court any plea was taken about their being  earlier report regarding alleged incidence.  Therefore, it is not  possible to accept the stand as presently urged.   

The other stand relates to the evidentiary  value of  statements of PWs 1 and 3 who were claimed to be related to  the deceased.

In regard to the interestedness of the witnesses for  furthering the prosecution version, relationship is not a factor  to affect the credibility of a witness.  It is more often than not  that a relation would not conceal the actual culprit and make  allegations against an innocent person. Foundation has to be  laid if a plea of false implication is made.  In such cases, the  court has to adopt a careful approach and analyse evidence to  find out whether it is cogent and credible.

In Dalip Singh and Ors.  v. The State of Punjab (AIR  1953 SC 364) it has been laid down as under:-

"A witness is normally to be considered  independent unless he or she springs from  sources which are likely to be tainted and that  usually means unless the witness has cause,  such as enmity against the accused, to wish to  implicate him falsely.  Ordinarily a close  relation would be the last to screen the real  culprit and falsely implicate an innocent  person.  It is true, when feelings run high and  there is personal cause for enmity, that there  is a tendency to drag in an innocent person  against whom a witness has a grudge along  with the guilty, but foundation must be laid  for such a criticism and the mere fact of  relationship far from being a foundation is  often a sure guarantee of truth.  However, we  are not attempting any sweeping  generalization.  Each case must be judged on  its own facts.  Our observations are only made  to combat what is so often put forward in

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cases before us as a general rule of prudence.   There is no such general rule. Each case must  be limited to and be governed by its own  facts."

The above decision has since been followed in Guli  Chand and Ors. v. State of Rajasthan (1974 (3) SCC 698) in  which Vadivelu Thevar v. State of Madras (AIR 1957 SC 614)  was also relied upon.

We may also observe that the ground that the witness  being a close relative and consequently being a partisan  witness, should not be relied upon, has no substance.  This  theory was repelled by this Court as early as in Dalip Singh’s  case (supra) in which surprise was expressed over the  impression which prevailed in the minds of the Members of  the Bar that relatives were not independent witnesses.  Speaking through Vivian Bose, J. it was observed:  

"We are unable to agree with the learned  Judges of the High Court that the testimony of  the two eyewitnesses requires corroboration.   If the foundation for such an observation is  based on the fact that the witnesses are  women and that the fate of seven men hangs  on their testimony, we know of no such rule.   If it is grounded on the reason that they are  closely related to the deceased we are unable  to concur.  This is a fallacy common to many  criminal cases and one which another Bench  of this Court endeavoured to dispel  in \026  ’Rameshwar v. State of Rajasthan’ (AIR 1952  SC 54 at p.59).  We find, however, that it  unfortunately still persists, if not in the  judgments of the Courts, at any rate in the  arguments of counsel."

Again in Masalti and Ors.   v.  State of U.P.  (AIR 1965  SC 202) this Court observed: (p. 209-210 para 14):

"But it would, we think, be unreasonable  to contend that evidence given by witnesses  should be discarded only on the ground that it  is evidence of partisan or interested  witnesses.......The mechanical rejection of  such evidence on the sole ground that it is  partisan would invariably lead to failure of  justice.  No hard and fast rule can be laid  down as to how much evidence should be  appreciated.  Judicial approach has to be  cautious in dealing with such evidence; but  the plea that such evidence should be rejected  because it is partisan cannot be accepted as  correct."

       To the same effect is the decision in State of Punjab v.  Jagir Singh (AIR 1973 SC 2407) and Lehna v. State of Haryana  (2002 (3) SCC 76).    

In S. Sudershan Reddy v. State of A.P. (AIR 2006 SC  2716), it was observed that relationship is not a factor to affect  credibility of a witness.  It is more often than not that a  relation would not conceal actual culprit and make allegations  against an innocent person.  Foundation has to be laid if plea

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of false implication is made.  In such cases, the court has to  adopt a careful approach and analyse evidence to find out  whether it is cogent and credible.    

Even if the recovery of the weapons as claimed was after  a long period and those were not sent for forensic examination   that does not in any way dilute the evidentiary value of the  prosecution version.   

Above being the position, there is no merit in this appeal,  which is accordingly dismissed.